269 F.

2d 928

Maurice E. TRAVIS, Appellant,

v.
UNITED STATES of America, Appellee.
No. 5879.

United States Court of Appeals Tenth Circuit.

August 3, 1959.
Rehearing Denied August 21, 1959.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED COPYRIGHT MATERIAL OMITTED Nathan Witt, New
York City, for appellant.
Donald E. Kelley, U. S. Atty., Denver, Colo., and Paul C. Vincent, Atty.,
Dept. of Justice (Philip R. Monahan and Anthony A. Ambrosio, Attys.,
Dept. of Justice, Washington, D. C., were with them on the brief), for
appellee.
Before PHILLIPS, MURRAH and LEWIS, Circuit Judges.
LEWIS, Circuit Judge.

This action is here on appeal for the second time. On the first appeal, 1 this
court set aside a conviction under the false statement statute, 18 U.S.C.A.
1001,2 and ordered a new trial because of prejudicial error committed when the
prosecutor was allowed to improperly cross-examine appellant's character
witnesses. The present appeal is from a second conviction after retrial of the
case in the United States District Court for the District of Colorado. Reversal is
sought upon a claim of insufficiency of the evidence to support the verdict and
numerous assertions of prejudicial error committed during the trial. Appellant
also challenges the constitutionality of 18 U.S.C.A. 3500 both as to its
provisions and as construed and applied by the trial court.

The appellant, Maurice E. Travis, was convicted by a jury on four counts of an

indictment charging him with falsely and fraudulently attesting that he was not
an affiliate or member of the Communist Party in two "Affidavits of Non-

Communist Union Officers" he executed as a national officer of the

International Union of Mine, Mill and Smelter Workers.3 The first affidavit
was executed on December 19, 1951, and the other on December 3, 1952, and
Mine-Mill filed them with the National Labor Relations Board in compliance
with the provisions of Section 9(h) of the National Labor Relations Act as
amended by the Labor Management Act of 1947 (29 U.S.C.A. 159(h).)4
3

Following conviction, appellant was fined $2,000 and sentenced to serve a

four-year term of imprisonment on each of two counts of the indictment. No
fine was imposed as to the remaining two counts, but he was sentenced to fouryear prison terms on both to run concurrently with the terms imposed on the
other counts. Thus, he was sentenced to a total of eight years in prison and fined
$4,000.5

Since appellant challenges the sufficiency of the evidence we shall summarize

that evidence urged by the government as ample basis for the jury verdict. This
consists primarily of the testimony of three former Communist Party members
who associated with Travis in various capacities as officers of Mine-Mill. Their
testimony indicates that in 1942 Travis was employed by Mine-Mill as
coordinator for the area of Northern California. He was at that time a member
of the Communist Party with an assignment to carry on the Communist Party
activities among the Mine-Mill workers in his area. Thereafter, he advanced to
positions of prominent leadership in the Mine-Mill Union becoming Assistant
to the President in 1946, Vice President in 1947 and President later that year.
He has been Secretary-Treasurer of the Union from 1948 until the time of trial.
There was extensive evidence of Travis' activities as a Communist Party
member prior to 1949. No prolonged description of his actions will be
undertaken here except to point out that as he progressed to positions of
national leadership in Mine-Mill he was able to use those positions to further
the interests of the Party. Illustrative of the scope of his activities is the
evidence that in 1946 the Communist Party designated a group of its members
who were prominent Mine-Mill leaders to coordinate the Communist activities
within Mine-Mill with a view to controlling the Union proper. Although not an
official organization of Mine-Mill, this group became known as the "Steering
Committee." Travis was one of the initial members of the Steering Committee
and its frequent meetings for planning Party strategy and organizing activities
within the Union were usually presided over by him "or some other ranking
Communist official." His influence in these meetings was notable. On one
occasion he stated to the other committee members that since the Party had
gained a majority of votes on the Executive Board of Mine-Mill they should
effect certain changes in Union staff and that previous actions taken by the antiCommunist faction of the Board should be reversed. These proposals were

subsequently adopted by the Mine-Mill Executive Board. On another occasion

Travis, as a member of the Steering Committee, participated with national
officers of the Communist Party in planning strategy for the selection and
support of Party-approved candidates for the international offices of Mine-Mill.
The resultant strategy was later substantially carried out at a Mine-Mill national
convention.
5

In 1947, Congress amended the National Labor Relations Act so as to restrict

enjoyment of the collective bargaining advantages of its provisions to labor
organizations whose officers had filed affidavits attesting that they were not
members of or affiliated with the Communist Party. 29 U.S.C.A. 159 (h).

The government introduced into evidence a copy of a public statement made by

Travis in the Union paper by which he declared that he had resigned from the
Communist Party in order to comply with the new Taft-Hartley amendment. It
then undertook to show that the resignation was merely a pretense and that in
fact Travis' membership in the Party continued during the period material to
this conviction. The evidence in this regard delineated a Communist labor
meeting in New York called to decide whether the Party would advocate that
its members sign the non-Communist affidavits under the new law. It was
decided that Party policy would be against signing. Appellant participated in
that meeting. Later, when he reported the decision to Party members of his own
Union he asked his fellow Communist Gil Green if the teachings of V. Lenin,
to the effect that Communists working inside trade unions must remain there at
all costs, including the use of artifice or device to do so, were applicable to their
situation. Green replied affirmatively and pointed out that labor leaders could
circumvent the law by belonging to a "Thursday afternoon social club" since
the law pertained only to present membership and not past or future
membership.

Following the passage of the non-Communist affidavit requirement of the TaftHartley law, the Mine-Mill Executive Board adopted a policy of noncompliance, thereby exercising its option as provided by the Act. Noncompliance, of course, resulted in inability of the Union to receive the
advantages of utilizing N.L.R.B. facilities for filing charges of unfair labor
practices and participation in Board elections. When it became apparent that
loss of advantages to the Unions was causing difficulty, the Mine-Mill
Executive Board by resolution reversed its previous position and adopted a
policy of compliance. Travis was a member of the Executive Board when that
decision was made. His statements to government witness Mason, set forth
infra, at the time he wrote his "resignation statement" indicated that his action
was in accordance with Communist Party policy. This resignation statement

was published in the Union paper on August 15, 1949.6

8

The government evidence pertaining to appellant's continued Party membership

after the resignation statement showed that in the fall of 1951 Travis used
government witness Fred Gardner, who had been recently employed by MineMill, to assist him in crossing the border into Canada. Travis explained to
Gardner that he was having difficulty crossing the border because of his
membership in the Party and the public resignation statement and that it would
be easier to cross in Gardner's car because it would not be recognized by
Canadian police. He stated that Gardner had come to him well recommended
by the Communist Party of Cleveland, Ohio, and that he was glad of that.
Travis expressed regret that his public resignation had been necessary in order
for Mine-Mill to conform to the Taft-Hartley filing requirements and in
discussing this he said that he "* * * believed it was a mistake because it gave
the enemies of the Party an opportunity to use that in pointing out that his
wasn't a true resignation from the Party, that actually it was done merely to
conform to the Taft-Hartley affidavits. * * *"

Relative to membership after execution of the first affidavit (December 19,

1951), witness Mason testified that in March of 1952 Travis stated to him that
the Soviet delegation at the World Federation of Trade Unions in Paris, France,
was demanding that the "American left-wing unions" who had been expelled
from the Congress of Industrial Organizations form a "third federation." He
said that the Communist Party had left it up to those in the Unions to make the
decisions and asked Mason what his view was. Travis expressed agreement
with Mason's response that he opposed such a move and said that "the boys in
the other unions" concurred and had left it to him, Travis, to communicate the
reply to Paris.

10

The evidence postdating the execution of the second affidavit indicated that in
March 1953 a staff conference of Mine-Mill was held in Denver, Colorado, for
the discussion of organizational and political action. At this conference Travis
handed to witness Mason a copy of the proposed conference agenda. Mason
examined the outline of the legislative program contained therein which listed a
number of items such as "repeal of the McCarran Act" and "fight against witchhunting" and called Travis' attention to the fact that nothing was listed
pertaining to betterment of workers. Travis agreed and directed that matters
suggested by Mason be included. However, later that day, Travis told Mason
"these other things, too, like repeal of the McCarran Act, are important, and he
said `When they get us Communists they will be after people like you if we
don't get these laws repealed.'"

11

12

In June 1953, witness Gardner was to be transferred by Mine-Mill to a new

assignment in the Coeur d'Alene Mining District of Idaho. Travis instructed
him to stop in Denver, Colorado, on his way to Idaho for a "briefing on the
Coeur d'Alene situation." Pursuant thereto, Gardner met with Travis in Denver
and was told that because of a factional dispute between Communist Party
members of Mine-Mill in Coeur d'Alene he was to "remain aloof" from Party
activity until further notified. Travis stated that he felt assured that the dispute
would be resolved by the expulsion of the leader of the faction opposing the
Party regional officers and instructed Gardner that once the problem was
resolved he would be contacted by someone whom Travis would identify to
him beforehand and that at that time Gardner could reactivate himself in the
Party.
In August 1953, witness Mason had a conversation with Travis in Butte,
Montana, in which he accused appellant and his Communist Party associates of
trying to undermine the leadership of Mine-Mill District Number 1 while they
were in the midst of a bargaining conflict with employers. Mason stated that he
was aware that this was done because the District 1 leadership opposed
Communist domination of Mine-Mill, that some of the men in Montana were
very angry about the situation and that he was addressing himself to Travis as
the leader of the Party in the Union. Appellant made no denials but suggested
that he would like to take the matter up with the "boys in Denver." He
suggested that Mason meet him in a few days in Denver to talk things over. In
compliance Mason met Travis in Denver and again expressed his opposition to
various activities in Mine-Mill including his view that the Union paper
constantly criticized the foreign policies of the United States without once
attacking the position of the Soviet Union. Travis answered that Mason's
position was in direct opposition to the Party and that he was not being realistic
if he thought appellant could change the policies of the paper. Appellant
continued, stating that the Communist Party leadership in Mine-Mill felt that
there should be no compromises "and that he, Travis, is one of those in the
Party who thinks that there have been too many compromises already, that
[Mason did] not grasp the new situation, that the Soviet Union is becoming
stronger, and that the position of the Communists in the Union has been
stronger, we have been able to, he said, repulse the raid and hold this union and
other unions." Mason threatened an open fight on the Communist issue and
Travis pointed out that he would have seasoned fighters, the machine and the
paper, to use against Mason in such a fight. Travis then concluded the
conversation by telling Mason: "You and Joe [Mason's brother] were invited to
get into the Party, had you done so, you would be sitting high in the councils of
this organization with us, but you failed to do so."

13

Many of the points raised in appellant's brief were considered by this court in
the recent case of Sells v. United States, 10 Cir., 262 F.2d 815, and need not
again be treated at length. As to the evidentiary questions involved, the Sells
case stands for the proposition that prosecution under the false statements
statute is not defeated by a temporary "resignation" for the purpose of signing
the affidavits only. Evidence of active participation on a continuing basis both
before and after the crucial time of signing and filing the affidavit is sufficient
evidence from which the jury might infer that membership continued during the
time in question.

14

Appellant has urged that the per-jury rule of evidence must apply to convictions
for false statements under Section 1001, 18 U.S.C.A., and that since the
government's case is concededly circumstantial the evidence is legally
insufficient to sustain the verdict, cf. Radomsky v. United States, 9 Cir., 180
F.2d 781; Spaeth v. United States, 6 Cir., 218 F.2d 361. However, in the Sells
case, this circuit followed the view of the 7th and 9th circuits, that the courtestablished rule governing the quantum of evidence required in a prosecution
for perjury, viz., falsity of the statement must be shown by the testimony of two
independent witnesses or other corroboration, is inapplicable to a prosecution
under Section 1001. United States v. Killian, 7 Cir., 246 F.2d 77; Fisher v.
United States, 9 Cir., 231 F.2d 99; Fisher v. United States, 9 Cir., 254 F.2d 302;
see also Hupman v. United States, 6 Cir., 219 F.2d 243. Hence, the trial court
did not err in submitting the case to the jury without instructing in accordance
with the perjury rule.

15

The evidence of Travis' continued membership in the Party stands

uncontradicted. Appellant made no attempt to affirmatively rebut the
government evidence on that issue nor did he introduce evidence of his
purported resignation. Instead, his defense consisted primarily in extensive
cross-examination of prosecution witnesses in an endeavor to impeach and
discredit their testimony. He also introduced the testimony of character
witnesses as to his reputation for truth and veracity. Of course, the absence of
rebutting evidence in no way relieves the government from meeting the burden
of proof. Nevertheless, it is a fundamental principle of appellate review in
criminal cases that once the jury has concluded, as it did here, that the guilt of
the accused was proven beyond a reasonable doubt, it is not the province nor
the function of this court to weigh the evidence or to test the credibility of
witnesses. United States v. Green, 7 Cir., 246 F.2d 155. Furthermore, we are
limited in the scope of our review to a determination of whether there is
substantial evidence to support the verdict, Wilcoxon v. United States, 10 Cir.,
231 F.2d 384, and must view the evidence in the light most favorable to the
government, Evans v. United States, 10 Cir., 240 F.2d 695. With these

principles in mind, a careful review of the voluminous record persuades us that

the jury verdict is amply sustained by cumulative proof that appellant's
Communist Party membership was not severed by the purported resignation
and that he was a Party member on the dates crucial to this decision.
16

There is no necessity to consider the sufficiency of the evidence under the

"affiliation" counts of the indictment because no fines were imposed thereon
and the prison sentences on those counts were made to run concurrently with
the prison sentences of the "membership" counts. Lawn v. United States, 355
U.S. 339, at page 359, 78 S.Ct. 311, 2 L.Ed.2d 321; Hirabayashi v. United
States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Roviaro v. United States,
353 U.S. 53, at page 59, footnote 6, 77 S.Ct. 623, 1 L.Ed.2d 639.

17

Appellant contends, but without merit, that the statements of the affidavits,
shown by the evidence and found by the jury to have been false at the time they
were made, were not "material" because the Union did not utilize the N.L.R.B.
procedures after recognition by the National Labor Relations Board.
Recognition was granted the Mine-Mill as a result of the Travis filing among
others, which indeed must have been his intent in filing, and the false statement
was "capable of influencing, the decision of the tribunal in making a
determination required to be made," Weinstock v. United States, 97
U.S.App.D.C. 365, 231 F.2d 699, 701. The materiality of the false statement is
tested not by the Union's use of the N.L.R.B.'s facilities but by the Union's
achievement thereby of a status which carries with it the right to invoke the
benefit of the National Labor Relations Act. Sells v. United States, supra.

18

The government's witness Eckert testified that during the time that he was a
member of the Communist Party, 1931 to 1948, it was the continuing policy of
the Party "that once having joined the Communist Party you could not leave
without being expelled." Defendant objected to the introduction of the
evidence, asserting that the testimony was based upon opinion unsupported by
facts, that it was unconnected in time with the date of defendant's resignation in
1949 or the filing of the affidavits in 1951 and 1952, and that it was an attempt
by the government to impute guilt by association.

19

Most assuredly, the evidence was probative of the second side of the question
of membership, i. e. whether the Party was willing to accept the defendant and
recognize him as a member, and hence admissible, but without more it could
show nothing of the state of mind of the defendant and could not show that he
did not, in fact, resign from the Party on the date he claimed. As was said by
Judge Bazelon in a special opinion written in Gold v. United States, 99
U.S.App. D.C. 136, 237 F.2d 764, 772, reversed on other grounds 352 U.S.

985, 77 S.Ct. 378, 1 L.Ed.2d 360:

20

"If no one can effectively resign from the Party, no union officer with
appellant's history can ever comply with 9(h) and the statutory phrase `is not
a member' is precisely equivalent to `has never been a member.' This possibility
Douds specifically rejects." See American Communications Association, C. I.
O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925.

21

Defendant sought to have given to the jury an instruction which could be

understood to limit the purpose of the admission of this testimony, but the trial
court ruled that, considered with other evidence in the record, the evidence was
relevant and probative of whether or not defendant's resignation was a true
resignation or a mere sham to obtain the benefits of the National Labor
Relations Act for Mine-Mill. Upon this premise, counsel argued to the jury that
numerous persons, including the government's witnesses, had left the Party,
regardless of the Party's policy.

22

Whether or not the jury could properly infer from the related evidence that the
defendant continued to act in obedience to this policy and that his resignation
was understood to be in form only determines whether the court was correct in
refusing to circumscribe its use by the jury. I Wigmore, Evidence, sec. 13.

23

In 1948, a meeting in New York City was held among persons of significance
in the trade unions and the Communist Party7 including the defendant and the
government witness Eckert, who related what transpired. The National Trade
Union Secretary of the Communist Party presided and stated that the purpose of
the meeting was to determine whether or not Communist officials in the unions
should be granted permission by the Party to sign the non-Communist
affidavits. Despite speeches protesting that the unions were not appearing on
election ballots because of lack of compliance with the law, it was decided that
Communist Union men would not sign the affidavits. Travis' reaction to the
decision was one of support and obedience. The Mine-Mill adopted the policy
of not signing the non-Communist affidavits.

24

Subsequently, Travis told another government witness, Mason, that the Union
was becoming more and more concerned because of the losses of elections and
that the Communist Party had been again discussing whether the Communist
Union officials should sign the affidavits. In a second conversation with Mason
in July, 1949, Travis offered him a copy of his resignation statement, which
was later published in the Union's paper, and said that the statement had been
cleared with Ben Gold and the Party people in New York. He told Mason that

"the Party thinks this is the best policy for us in the unions to follow."
25

In October, 1951, Travis had a conversation with the witness Gardner: "* * *
we very briefly discussed his resignation from the Party in which he pointed out
that he believed that resignation, that public resignation was a mistake because
it gave the enemies of the Party an opportunity to use that in pointing out that
his wasn't a true resignation from the Party, that actually it was done merely to
conform to Taft-Hartley affidavits, and they recognized, the enemies of the
Party recognized that this was not an actual resignation, * * *."

26

Thus the evidence of the Party's policy was relevant in the interpretation of the
defendant's statements and behavior, and is not analogous to the prohibited
imputation drawn from membership alone that a member endorses fully all of
the precepts of the Party. Cf. Schneiderman v. United States, 320 U.S. 118, 63
S.Ct. 1333, 87 L.Ed. 1796; Nowak v. United States, 356 U.S. 660, 78 S.Ct. 955,
963, 2 L.Ed.2d 1048; Maisenberg v. United States, 356 U.S. 670, 78 S.Ct. 960,
2 L. Ed.2d 1056.

27

The charge that Eckert's testimony on this point was opinion unsupported by
facts going to the main issue results from a confusion in the record as to
whether Eckert was testifying as an expert. Eckert's position of knowing what
Party policy was during the time of his membership was shown through
evidence similar to that customarily evoked to qualify an expert, but he testified
as to a fact within his knowledge rather than giving an opinion as an expert.

28

The trial court did not instruct the jury that there was a presumption, in absence
of contradicting evidence, either that the Party's policy of no resignations
continued or that Travis' membership, having been admitted prior to the alleged
resignation and inferentially shown subsequent to that time, continued during
the time the affidavits were filed. The factual effect of the evidence was left to
the jury. That body might well have drawn an inference unfavorable to
appellant. See Jencks v. United States, 5 Cir., 226 F.2d 540, 547, reversed on
other grounds 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103.

29

Appellant urges that Eckert's testimony was remote, irrelevant and

inflammatory because early in the proceedings defense counsel offered to
stipulate that Travis had been a Party member from 1941 to August 1949 and
Eckert could show no more than an adherence to Party principles until 1948.
Since a man's state of mind must necessarily be shown from his statements and
conduct, the prosecution bore the burden of demonstrating a continuation of
activities and attitudes similar to those performed and held by Travis during the

time of his admitted membership after the date of his purported resignation.
The evidence of how extensively, actively and zealously Travis had worked as
a Party member and his leadership in the Party was clearly relevant to the
question of whether or not the resignation was a mere pretense. If it is true that
evidence of Communist Party activities has a tendency to provoke present-day
juries toward prejudice, it is ridiculous to suppose that the attitude of the public
against a crime will prevent its prosecution. If the evidence has probative value,
it is ordinarily admissible regardless of an imagined reaction of the jury, Suhay
v. United States, 10 Cir., 95 F.2d 890.
30

Appellant insists that the trial court improperly restricted his cross-examination
of prosecution witnesses by not allowing him to show that witness Mason was a
government informant through fear of deportation and that Eckert and Gardner
were members of a labor organization with rival interests to those of Mine-Mill.
As to Mason, the evidence showed that he had been a member of the
Communist Party for a brief period in the early 1930's. In cross-examining
Mason, defense counsel elicited the information that he had become a
naturalized citizen in 1938 and that prior to his naturalization the United States
Immigration and Naturalization Service had questioned him about his past
Party membership. The defense then asked Mason if he was again questioned
by that Service about the same matter in 1952. The government objected to the
question as improper cross-examination and counsel were heard in chambers.
The defense argued that it wanted to show that the witness had an interest in
testifying. Counsel suggested that Mason knew that Congress passed the
McCarran Act providing for deportation of aliens on grounds of past
membership in the Communist Party and asserted that it sought to elicit
evidence that government agents had held out promises or threats to Mason to
induce him to testify. The government insisted that the purpose of the defense
was merely to embarrass the witness. The court then addressed defense counsel
as a member of the Bar of the Court and asked if he knew of anything which
would substantiate the charge. Defense counsel responded that he had no
knowledge of promises or threats but said he had been informed that during the
pertinent period the witness was very concerned about his status as an alien and
was "going around asking people questions" about it. The court then sustained
the government objection stating that it did not think the inference that there
were threats or promises was warranted.

31

Cross-examination of a witness is a matter of right, The Ottawa, 3 Wall. 268,

271, 18 L.Ed. 165, and cannot be circumscribed by the courts where the
questions propounded are within the framework of his testimony on direct
examination, except to the extent the witness himself claims privilege or
constitutional protection. However, the demonstration of a witness' bias almost

always requires a search of his conduct and the circumstances of his situation,
which facts may be irrelevant to the issues at trial but important to the litigants
as a safeguard against false or colored testimony. III Wigmore, Evidence, 943.
Prolonged digressions from the matters at hand for the purpose of exploring the
manners and morals, hopes and fears, beliefs and conflicts of a personality
whose connection with the trial occurs merely because of his position as a
spectator can as readily abort the process of justice as can a denial of the right
of cross-examination. Thus, it has long been held that the scope of crossexamination seeking to discredit the witness may be reasonably limited by the
court responsible for the trial of the case. In Blitz v. United States, 153 U.S.
308, 312, 14 S.Ct. 924, 925, 38 L.Ed. 725, where a question seeking to impeach
a deputy marshal was not permitted, the court stated:
32

"The question was clearly irrelevant, and was properly excluded. The reasons,
whatever they may have been, that induced the witness not to arrest the
defendant when the latter voted the second time in the same election, did not
throw any light upon the issue to be determined. If the object was to test the
accuracy or credibility of the witness, it is quite sufficient to say that the extent
to which a cross-examination may be allowed for such a purpose especially
where, as in this case, the question had no reference to any matter disclosed by
the examination-in-chief is largely subject to the sound discretion of the trial
court, and the exercise of that discretion is not reviewable upon writ of error;
certainly not where the question, upon its face, suggests nothing material to the
inquiry whether the defendant is guilty or not guilty of the specific offense
charged in the indictment."

33

Certain classes of facts such as family relationship to a party have been held to
so strongly give rise to inferences relevant to the witness' interest and bias as to
leave no room for an exercise of discretion in admissibility. III Wigmore,
Evidence, 948. Among these always admissible circumstances is the fact that
the witness for the prosecution is under indictment or in custody at the time of
trial, Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; District
of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843. But these
cases do not govern the situation of the witness Mason in the present case and,
in fact, reaffirm the view of the Blitz case that, in the absence of an abuse of
discretion, the decision of permitting or excluding extrinsic evidence for
impeachment purposes rests with the trial judge. As stated by Professor
Wigmore, new circumstances will constantly be presented as suggestive of
personal prejudice and the trial court must determine whether from the conduct,
language or circumstances of the witness a palpable hostility to one party or
sympathy for the other is inferable.

34

The inference that the witness Mason was coercively influenced to testify by a
power over him held by immigration officials requires imagination to be
applied in disparagement of facts appearing in the record. Mason is a
naturalized citizen, not an alien subject to deportation. If wild surmise permit
the deduction that he had committed a fraud in his application for citizenship by
concealing his membership in a subversive group, which might be used to
return him to an alien status, such conjecture is dispelled by his revelations to
the Service in 1938. Therefore, we find no abuse of discretion on the part of the
trial court in excluding the question as to the witness' more recent contacts with
immigration officials.

35

As to the cross-examination of Eckert and Gardner, appellant urges that it was

error for the trial court to sustain objections to questions concerning alleged
rivalries between Mine-Mill and the labor organization then employing those
two witnesses. The trial court in ruling on the matter expressed the view that
any possible inference that could be drawn from a showing of such rivalry
would be too remote to be relevant. In arguing that this was error, appellant
cites authorities for the proposition that it is within the proper scope of crossexamination to show that the witness is testifying for his employer,8 that his
employer has an interest in the recovery,9 is employed by the law firm
representing the party for whom he testifies,10 or when his employer is a
business competitor of the party against whom he testifies.11 He also cites a
decision of this court to the effect that it is proper to probe the employment of a
witness where he is an adjuster for a group of fire insurance companies,
possibly interested in the suit, where the action sought damages for negligent
installation of a furnace.12 However, none of those cases has gone so far as
appellant asks that we go here. Each of those cases was a civil action in which
the employer had some interest in the outcome of the suit. But this is a criminal
action and it is brought against Travis, not against Mine-Mill. What appellant
asks is that he be allowed to show rivalry between the Unions in order to
impute prejudice against Mine-Mill to the witness and then asks the jury to
infer therefrom bias against Travis. It is not reversible error to restrict crossexamination questions having only a slight and indirect bearing on the bias and
credibility of a witness. District of Columbia v. Clawans, supra. The trial court
correctly ruled that the evidence was too remote to be admissible.

36

Appellant next complains of the instructions to the jury concerning the

meaning of membership in and affiliation with the Communist Party.13 He
argues that the definition of "membership" used by the court was so all
embracing and vague as to be meaningless destroying as a consequence any
distinction between "membership" and "affiliation." We see no substance to this
contention. In charging the jury with respect to the components of Communist

Party membership and affiliation the trial court carefully followed the
directions of this court expressed in the opinion on the first appeal.14 The
instructions were meaningful and clear. They included 11 of the 14 indicia of
membership outlined by Congress in Section 5 of the Communist Control Act
of 1954 (50 U.S.C.A. 844) and emphasized the primary element of
membership as suggested by Mr. Justice Burton in Jencks v. United States, 353
U.S. 657, 77 S.Ct. 1007, 1019, 1 L.Ed. 2d 1103, that there must be present "the
desire of an individual to belong to the organization and a recognition by the
organization that it considers him as a member." This adequately outlined the
kind of acts that could be considered evidence of membership and included the
idea of the continuing reciprocal relationship necessary for that status.
37

The jury was told that Travis' membership in the Communist Party at the times
alleged in the indictment was to be determined from "all the evidence in the
case" and that they were not limited solely to consideration of the indicia of
membership enumerated by the court. However, this in no way indicates, as
appellant contends, that the jury was told it was free to consider anything in
evidence as proof of membership. The court went on to clarify: "* * * it is your
duty to consider all the evidence * * * which bears upon the question of
whether or not the defendant was a member of the Communist Party on the
dates alleged in the indictment." (Emphasis added.) Furthermore, it must be
presumed that the jury, after such careful instructions on the components of
membership, is perfectly capable of separating evidence which tends to prove
membership from evidence which does not. Appellant also argues in this
connection that the instructions left the jurors free to use single items of
evidence standing alone as the basis for their findings. Such was not the case.
They were instructed that isolated acts or statements were circumstances they
could consider, but were cautioned that these were not in themselves conclusive
proof of membership and were only to be considered in connection with the
other evidence, that they were to weigh all the evidence bearing on the crucial
issues, and that the government retained the burden of proving guilt beyond a
reasonable doubt.

38

Nor is there any merit to the contention that the jury was left free to infer
membership at the time of signing the affidavits from appellant's past Party
membership or from the conclusion that the resignation was not honest. The
instructions clearly contravene this argument:

39

"The crucial issue of fact in this case is whether on December 19, 1951, and
December 3, 1952, Maurice E. Travis was or was not then a member of the
Communist Party or affiliated with such party.

40

"The affidavits do not call upon any person to state whether or not in the past he
has ever been a member of the Communist Party or affiliated with it. A person
who has been at some time in the past either a member of the Communist Party
or affiliated with that Party but who has terminated such membership or
affiliation prior to the making of the affidavits would be entitled to sign the
affidavits under oath without violating the law.

41

"Since the affidavits speak in the present tense only, the fundamental issue of
fact for you to decide is whether or not at the times alleged in the indictment
the defendant knowingly and wilfully used an affidavit which was false and
which he knew to be false at that time.

******
42
43

"You may not presume the existence of a fact and then infer from such
presumed fact the existence of any other fact or circumstance. You may not
infer from any presumed fact or facts that the defendant is guilty of any of the
offenses charged in the indictment."

44

It is urged that the trial court should have clarified what bearing the preaffidavit and post-affidavit evidence had on guilt and that it should have
pointed out which evidence was relevant to each affidavit. We do not agree.
The court should not be required to emphasize particular portions of the
evidence. To require trial courts to suggest to the jury the inferences which may
be drawn from the evidence would be to invite error. Radius v. Travelers Ins.
Co., 9 Cir., 87 F.2d 412. Further, it would be an invasion of the province of the
jury to judicially measure the weight of circumstances which the jury can
determine equally as well. Majestic v. Louisville & N. R. Co., 6 Cir., 147 F.2d
621.

45

Further error is alleged in the refusal of the court to give several requested
instructions. We shall not lengthen this opinion by discussing appellant's many
contentions in this regard. It is sufficient to say that the instructions given to the
jury were complete and proper. Moreover, the jury was admonished with
particularity as to all the safeguards that should properly surround a criminal
prosecution. The rejected instructions added no proper charge which was not
covered by those actually given and there was no error in refusing to give them.

46

After each of the government witnesses had testified on direct examination at

the trial, appellant moved that the prosecution be required to produce all reports
and statements previously made by those witnesses to any agent of the

government as provided under 18 U.S.C.A. 3500. The motions were granted

but since the government claimed that the statements of each witness contained
matter not related to the subject matter of his testimony as a witness, the trial
court, pursuant to Section 3500(c), examined the statements in camera and
excised the unrelated matters before delivering them to appellant.
47

Appellant's claims anent the constitutionality of section 3500 were examined

fully in the Sells case, supra. Inasmuch as the availability to the defense of
documents held by the government is limited under the decision of Gordon v.
United States, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447, and Jencks v. United
States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, to matters relevant to the
testimony of a witness for the prosecution, Section 3500 merely provides the
procedure by which that relevancy may be determined and deprives the
defendant of nothing to which he was formerly entitled. Of course, the excised
portion of a statement must be available for review to test the correctness of the
trial court's judgment in eliminating it from consideration by the defense.

48

The United States Supreme Court has held in recent decisions, Palermo v.
United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 and Rosenberg v.
United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304 that Section 3500
is constitutional and governs the rights of a defendant to the production of
documents in the hands of the prosecution. Further, the court approved the in
camera inspection by the trial court as the proper procedure to be followed in
determining the application of the statute to the particular statements sought by
the defense. We have carefully examined and compared the complete
documents and the documents as they were submitted finally to the defense and
conclude that the only excised portions related to matters and persons not
connected with the present case.

49

Counsel for appellant has skillfully anticipated a great many problems which
will yet arise before the administration of Section 3500 is stabilized by
precedent. Most of these problems are not made ripe for decision under the
present case.

50

Appellant suggests that the trial court delegated to the prosecution its
responsibility for the determination of whether or not certain documents
contained "statements" within the purview of Section 3500(e) which should be
made available to the defense. He contends that if the prosecution determines
that no part of a statement relates to the subject matter or, if it does, that it is not
a "statement" as defined in subsection (e), then the trial court never inspects the
statement at all and it is not preserved for the record. "There is appellate review
if only part of a document is withheld from the defense; none, if the entire

document is withheld." This problem was foreseen by the United States

Supreme Court in the Palermo case, supra, and the production by the
government of doubtful writings and in camera determination of the subject
matter and whether it comes within the definition of "statement" of subsection
(e) was approved. This ruling, however, does not aid appellant for the record
shows merely that the three witnesses, Eckert, Mason, and Gardner, had talked
with government attorneys in preparation for this case and that Eckert had
talked to an investigator for a congressional committee. The subject of these
conversations was Travis and Mine-Mill, but there is nothing in the record to
indicate that these witnesses had in these instances written, signed, adopted or
approved any writing or that any recording was made of any oral statement
made to these agents. It is presumed that these agents took notes or made
summaries of their conversations with the witnesses but such interpretations
would not be "statements which could properly be called the witness' own
words," Palermo v. United States, and the witnesses denied signing or adopting
any such statements.
51

Appellant moved for the production of the witnesses' testimony before one or
more grand juries. The theory that either the Jencks decision, Jencks v. United
States, supra, or the Jencks Act, Section 3500, encompasses grand jury
testimony was discarded in Pittsburgh Plate Glass Co. v. United States, 360
U.S. 395, 79 S.Ct. 1237, 3 L.Ed.2d 1323. Unlike the appellant in that case,
however, appellant here moved the court for inspection of the grand jury
minutes as a matter or right and alternatively to have the minutes produced for
the court's examination and determination whether inconsistencies appeared
between the witness' testimony before the grand jury and his testimony at trial.

52

Thus, the question here is the one particularly left undecided by the Pittsburgh
Plate Glass case: Whether the trial court may, in the discretion granted him
under Rule 6(e), Fed.Rules Crim. Procedure, 18 U.S.C.A., refuse to examine
the transcript of the grand jury when requested to do so. Rule 6(e) provides:

53

"Disclosure of matters occurring before the grand jury other than its
deliberations and the vote of any juror may be made to the attorneys for the
government for use in the performance of their duties. Otherwise a juror,
attorney, interpreter or stenographer may disclose matters occurring before the
grand jury only when so directed by the court preliminarily to or in connection
with a judicial proceeding or when permitted by the court at the request of the
defendant upon a showing that grounds may exist for a motion to dismiss the
indictment because of matters occurring before the grand jury. * * *"

54

It has been held that instances when the need for disclosure of grand jury

proceedings outweighs the counter-vailing policy maintaining the secrecy of

such proceedings must be shown with particularity, United States v. Procter &
Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077. The burden is on the
defense to show that "a particularized need" exists for the minutes which
outweighs the policy of secrecy, Pittsburgh Plate Glass Co. v. United States,
supra. Thus, where some portion of a defendant's testimony was impeached by
the government's use of her grand jury testimony, it has been held that the trial
court should make an inspection of all of her testimony for the purpose of
disclosing other inconsistencies to the use of a co-defendant, United States v.
H. J. K. Theatre Corporation, 2 Cir., 236 F.2d 502, but this is a far cry from
requiring a trial court to examine all of the testimony of all of the witnesses for
the prosecution upon the defense's hope of thereby uncovering some
inconsistency. In view of prior statements of these witnesses made available to
the defense, in which there appeared no suggestion of material inconsistency, it
is unlikely that their statements to the grand jury occurring at a time between
the giving of such statements and consistent statements upon trial would
produce impeaching material. Appellant shows inaccuracies in the testimony of
the witnesses (i. e. Gardner thought he had testified in another case the prior
week but actually it was two weeks earlier; Eckert had testified on seven
previous occasions against Mine-Mill but his testimony as to details was not
precisely the same on each occasion; Gardner's evidence at trial was not shown
on the reports which he made to the F.B.I.; Mason stated to the F.B.I. that he
was "unable to enlarge" on information about appellant, but at trial gave other
specific information); these inaccuracies might well give rise to argument
concerning the witnesses' memories and powers of observation which were
available to the defense from the materials produced by the government. They
do not demonstrate a reason for believing that the witnesses' testimony was
biased or impeachable on material fact. They do not compel the conclusion that
the testimony before the grand jury requires further investigation.
55

Since the permission or refusal of a defense inspection of grand jury minutes

rests in the discretion of the trial court, United States v. Socony-Vacuum Oil
Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129, and since no showing was
made of a particularized need for the grand jury minutes in the maintenance of
the defense, Pittsburgh Plate Glass Co. v. United States, supra, we hold that the
trial court did not abuse its discretion in failing to order the production of grand
jury minutes in this case where difficulties have arisen not from the paucity of
evidence but from its plethora.

56

Affirmed.

Notes:
1

Travis v. United States, 10 Cir., 247 F. 2d 130

"Whoever, in any matter within the jurisdiction of any department or agency of

the United States knowingly and willfully falsifies, conceals or covers up by
any trick, scheme, or device a material fact, or makes any false, fictitious or
fraudulent statements or representations, or makes or uses any false writing or
document knowing the same to contain any false, fictitious or fraudulent
statement or entry, shall be fined not more than $10,000 or imprisoned not more
than five years, or both."

Hereafter called Mine-Mill

"No investigation shall be made by the Board of any question affecting

commerce concerning the representation of employees, * * * and no complaint
shall be issued pursuant to a charge made by a labor organization * * * unless
there is on file with the Board an affidavit executed * * * by each officer of
such labor organization * * * that he is not a member of the Communist Party
or affiliated with such party, and that he does not believe in, and is not a
member of or supports any organization that believes in or teaches, the
overthrow of the United States Government by force or by any illegal or
unconstitutional methods. * * *"

The judgment giving rise to the instant appeal differed from the judgment at the
first trial in that fines of $2,000 were imposed on all four counts at the former
trial making a total fine of $8,000

Excerpts from this public resignation statement illustrate its general tenor:
"Since the interest of the International Union is uppermost in my mind, I have
been confronted with the problem of resigning from the Communist Party, of
which I have been a member, in order to make it possible for me to sign the
Taft-Hartley affidavit. I have decided, with the utmost reluctance and with a
great sense of indignation, to take such a step. My resignation has now taken
place and as a result, I have signed the affidavit.
"This has not been an easy step for me to take. Membership in the Communist
Party has always meant to me, as a member and officer of the International
Union, that I could be a better trade unionist: it has meant to me a call to

greater effort in behalf of the union as a solemn pledge to my fellow members

that I would fight for their interests above all other interests. (Emphasis in
original.)
"The very premise of the Taft-Hartley affidavits is a big lie, the same sort of lie
that misled the peoples of Germany, Italy and Japan down the road to fascism.
It is a big lie to say that a Communist trade unionist owes any higher loyalty
than to his union. On the contrary, trade unions are an integral part of a
Socialist society, the kind of society in which Communists believe. Therefore, I
believe that good Communists are good trade unionists.
*****
"At the same time, I want to make it absolutely clear that my opinion continues
to be that only a fundamental change in the structure of our society, along the
lines implied in the very words of the charter of our International, `Labor
produces all wealth wealth belongs to the producer thereof,' can lead to the
end of insecurity, discrimination, depressions and the danger of war.
"I am convinced that capitalistic greed is responsible for war and its attendant
mass destruction and horror, I am convinced it is responsible for depression,
unemployment and the mass misery they generate. * * *
*****
"Therefore, I want to make it crystal clear that my belief in Communism is
consistent with what I believe to be the best interests of the members of this
Union and the American people generally and that I am especially happy to be
able constantly to remember that it is consistent with the finest traditions of the
International Union."
7

In attendance besides Travis and Eckert, were William Z. Foster, National

Chairman of the Communist Party, Eugene Dennis, General Secretary, Ben
Gold, a member of the Central Committee and an official of the Fur Workers
Union, John Williamson, National Trade Union Secretary of the Communist
Party, Arnold Johnson, Ohio State Secretary of the Party, and officials of the
Farm Equipment Union, Furniture Workers Union and Electrical, Radio, and
Machine Workers Union

Central Truck Lines, Inc. v. Lott, 5 Cir., 249 F.2d 722

Majestic v. Louisville & N. R. Co., 6 Cir., 147 F.2d 621

10

Lexington Glass Co. v. Zurich General Acc. & Liability Ins. Co., Ky.App., 271
S.W.2d 909

11

Manley v. Northumberland County, D.C. M.D.Pa., 32 F.Supp. 775

12

Theurer v. Holland Furnace Co., 10 Cir., 124 F.2d 494

13

The trial court instructed the jury as follows:

"Whether or not the defendant was a member of the Communist Party at the
times alleged in the indictment is a question of fact which you are to determine
from all of the evidence in the case. In determining this question you must bear
in mind that the burden of proof rests on the Government to prove the
defendant guilty beyond a reasonable doubt. Membership or lack of
membership in the Communist Party may be established by direct as well as
circumstantial evidence.
"Membership in the Communist Party, the same as membership in any other
organization, constitutes the state of being one of those person(s) who belong to
or comprise the Communist Party. It connotes a status of mutuality between the
individual and the organization. That is to say, there must be present the desire
on the part of the individual to belong to the Communist Party and a
recognition by that Party that it considers him as a member.
"Intent is a state of mind and can only be determined by what an individual says
and what he does. In determining the issue as to whether the defendant was or
was not a member of the Communist Party at the times alleged in the
indictment, you may take into consideration the acts and statements of this
defendant, as disclosed by the evidence, bearing in mind that individual and
unrelated isolated acts of the defendant showing cooperation with the
Communist Party or isolated statements of the defendant showing sympathy
with the Communist Party are not in themselves conclusive evidence of
membership but are circumstances which you may take into consideration
along with all the other evidence in this case.
"In determining whether or not the defendant was a member of the Communist
Party at the times alleged in the indictment, you may take into consideration
whether the defendant: 1. Has made himself subject to the discipline of the
Communist Party in any form whatsoever; 2. Has executed orders, plans, or
directives of any kind of the Communist Party; 3. Has acted as an agent,
courier, messenger, correspondent, organizer, or in any other capacity in behalf
of the Communist Party; 4. Has conferred with officers or other members of the

Communist Party in behalf of any plan or enterprise of the organization; 5. Has

been accepted to his knowledge as an officer or member of the Communist
Party or as one to be called upon for services by other officers or members of
the organization; 6. Has written, spoken or in any other way communicated by
signal, semaphore, sign, or in any other form of communication orders,
directives, or plans of the Communist Party; 7. Has prepared documents,
pamphlets, leaflets, books, or any other type of publication in behalf of the
objectives and purposes of the organization; 8. Has mailed, shipped, circulated,
distributed, delivered, or in any other way sent or delivered to others material or
propaganda of any kind in behalf of the organization; 9. Has advised, counseled
or in any other way imparted information, suggestions, recommendations to
officers or members of the Communist Party or to anyone else in behalf of the
objectives of the organization; 10. Has indicated by word, action, conduct,
writing or in any other way a willingness to carry out in any manner and to any
degree the plans, designs, objectives, or purposes of the organization; 11. Has
in any other way participated in the activities, planning, actions, objectives, or
purposes of the organization.
"These are some of the indicia of Communist Party membership but you are
not limited solely to those I have enumerated. As sole arbiters of the facts it is
your duty to consider all the evidence either direct or circumstantial which
bears upon the question of whether or not the defendant was a member of the
Communist Party on the dates alleged in the indictment.
"In determining this question, you must bear in mind that the burden of proof
rests upon the Government to prove the defendant guilty beyond a reasonable
doubt. If you find that the Government has sustained this burden by proving
beyond a reasonable doubt, that the defendant was a member of the Communist
Party on December 19, 1951, and December 3, 1952, as alleged in the
indictment, and if you find also that the Government has proved beyond a
reasonable doubt the other essential elements of the offense charged in the first
and fourth counts of the indictment, as I have outlined them to you, then you
must find the defendant guilty as to the first and fourth counts.
"If, however, you find that the Government has not sustained the burden of
proving beyond a reasonable doubt that the defendant was a member of the
Communist Party on the dates alleged in the indictment, then you must find
him not guilty as to the first and fourth counts.
"`Affiliation' as used in the second and fifth counts of the indictment is not the
same as membership. The word `affiliated,' as used in the second and fifth
counts of the indictment, means a relationship short of and less than

membership in the Communist Party, but more than that of mere sympathy for
the aims and objectives of the Communist Party.
"A person may be found to be `affiliated' with an organization, even though not
a member, when there is shown to be a close working alliance or association
between him and the organization, together with a mutual understanding or
recognition that the organization can rely and depend upon him to cooperate
with it, and to work for its benefit, for an indefinite period upon a fairly
permanent basis.
"`Affiliation' includes an element of dependability upon which the organization
can rely which, though not equivalent to membership duty, does rest upon a
course of conduct that could not be abruptly ended without giving a reasonable
cause for the charge of a breach of good faith.
"Whether or not the defendant was affiliated with the Communist Party at the
time alleged in the indictment is a question of fact which you, ladies and
gentlemen, are to determine from all the evidence in the case. Affiliation or
lack of affiliation in the Communist Party may be established by direct as well
as circumstantial evidence." (Record 1228-1230.)
14

247 F.2d 130, at pages 135 and 136

57

MURRAH, Circuit Judge (dissenting).

58

In the first place, I would apply the perjury rule for the reasons so well stated
by Judge Bazelon in Gold v. United States, 99 U.S.App.D.C. 136, 237 F.2d
764. As in that case, the charge is false swearing, the evidence is indeed
indirect and circumstantial, and in my judgment inconclusive. The only reason
assigned for the inapplicability of the ancient and accepted perjury rule
requiring direct and positive evidence of guilt, is that in cases of this kind, its
application would "merely thwart the attainment of the end which Congress
sought to accomplish by the enactment of Paragraph 9(h)." See Sells v. United
States, 10 Cir., 262 F.2d 815. But there is nothing in the legislative history of
Section 9(h) to indicate that the Congress entertained the view that the perjury
rule was inapplicable to prosecutions under Section 1001, as in Section 1621.
See Judge Bazelon in the Gold case, Note 17. While feeling myself bound by
the pronouncements of my court in the Sells case, I cannot refrain from
expressing the hope that such is not the law in cases of this kind.

59

I would reverse this case and remand it for a new trial for the refusal of the trial

court to examine the grand jury evidence in camera, to determine whether the
lid of secrecy ought to be lifted in the interest of the proper administration of
criminal justice. We know that grand jury testimony may be disclosed only
upon a showing of a particularized need, and the burden of showing that need is
on the one seeking it. But if the rule is to have any efficacy, its burdens ought
not to be insurmountable.
60

How then may the accused lay a foundation for requisite inconsistency when
he does not have access to the testimony or any other means except crossexamination in the hope that something will turn up? In our case the crossexamination of the prosecuting witnesses disclosed that they had testified in
numerous cases of this kind, as well as before the grand jury which had indicted
the accused. There were some inconsistencies in the testimony they had given
in other open proceedings. But there was no conceivable way of showing a
particularized need unless the accused could get the grand jury testimony
before the court.

61

It is for these reasons that we have committed to the trial court the judicial
function of determining ex parte whether the testimony of the witnesses is
substantially consistent. And, the court cannot exercise that important function
unless he knows something of the witnesses' testimony. It would seem
therefore that the trial court erroneously and prejudicially refused to take a
judicial look at the grand jury testimony. Cf. United States v. Spangelet, 2 Cir.,
258 F.2d 338. It may be that we would be justified in having the grand jury
testimony certified for examination here, as was done in United States v. Lev, 2
Cir., 258 F.2d 9. Unless it is done, I certainly can't say that it was harmless
error to refuse to look at it.

62

This case is important, not only to the accused here, but as a guiding precedent
in other cases. I do not believe we can dispose of the question by simply saying
that it was harmless.